Will justices see the change?

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Some of our Supreme Court justices are so out of touch, it would be cute if it weren’t also faintly terrifying.

During Tuesday’s arguments on same-sex marriage, Samuel Alito fretted that the court should be wary of striking down a gay marriage ban ­because gay marriage is “newer than cellphones or the Internet,” unlike heterosexual marriage, which is 2,000 years old. What was he saying? We don’t know if this is a good thing yet, so let’s wait a couple of more centuries.

On Wednesday, Chief Justice John ­Roberts seemed unable to get his head around the transformation in people’s attitudes about gay rights since the Defense of Marriage Act was ­enacted in 1996. Surely it was because same-sex marriage proponents had “politically powerful lobbyists.”

“You referred to a sea change,” he said to one lawyer, “and I’m just trying to see where that comes from, if not from the political effectiveness of . . . groups on your side of the case.”

The change is right before your eyes, your honor, in the hearts and minds of millions. People who live in the actual world can see that gay marriage hasn’t brought civilization to its knees, so they’re increasingly fine with it.

We know that better here than anywhere. In May 2004, when those first, teary gay and lesbian couples lined up for marriage licenses across the Commonwealth, it was an earth-shattering event. Now it’s part of the woodwork.

“Before 2004, it was this abstract discussion of legal principles,” said Mary Bonauto, the attorney who brought the case decided here in 2003. “Then the nation began to witness same-sex couples joining in marriage, and the predictions and fears had to fall away.’’

From that point on, gay marriage proponents had no real need for pricey lobbyists. Thousands of ordinary people were doing the job for free, just by living their lives, as great or boring as those of other married couples.

Bonauto could see that people’s attitudes would keep shifting in favor of her cause. And so, soon after securing the right to marry in Massachusetts, she set her sights on DOMA, the 1996 law withholding federal benefits, like tax and immi­gration protections, from married gay couples. In 2008, she went to Martha Coakley, then Middlesex district attorney running for attorney general, to ask her to join the effort, to challenge DOMA on behalf of the state. Only a few years ­before, the state had been Bonauto’s opponent.

Coakley agreed, becoming the first — and still the only — state attorney general to challenge the law. Speaking from Washington yesterday, ­Coakley said it hadn’t been a difficult decision. She had plenty of gay clients and colleagues, and then there was also a critical visit from one of her assistants, a gay attorney married to a federal ­employee, a victim of the bias the Defense of Marriage Act enshrined. “It was a crystallizing moment,” Coakley recalled. “People are agonizing over things everybody else takes for granted.”

Some, and I was among them, worried that Bonauto was moving too fast. But between the time she brought her case in 2009 and the time a federal Appeals Court declared DOMA unconstitutional last year, the sea change that mystified Roberts, the chief justice, was a giant swell.

A similar New York case, not Bonauto’s, was before the Supreme Court Wednesday. But ­Bonauto and Coakley were both in the courtroom. They heard the obtuse questions from the conservative justices, but there was plenty of talk from the bench to encourage them. Optimistic observers say DOMA might be struck down or at least rendered powerless in some states.

When the state’s Supreme Judicial Court ruled in favor of gay marriage in 2003, it was way ahead of most of the country. If a
Supreme Court majority doesn’t do the same now, they will very soon be known as legal laggards, blind to the history being made right in front of them.

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